DISCOVERY IN EMPLOYMENT CIVIL RIGHTS CASES: FINDING WHERE THE BODIES ARE BURIED

Posted By V. James DeSimone || 26-Feb-2016

"Is she dead yet?" Simultaneous feelings of excitement and disgust
ran through me as I read this line while reviewing pages and pages of
email correspondence amongst employees of a major corporate defendant.
The particular email was sent from a co-worker of my client to his supervisor
and was sent on the very same day that my client, a hard-working, dedicated
young woman, was terminated in retaliation for speaking up about the preferential
treatment provided to male employees in the work-place. The line clearly
referred to my client's termination and I was excited because it would
provide critical inferential evidence that her male co-workers were favored
by her boss. I was disgusted because of the callous indifference this
young man showed to his co-worker who needed this job as much, if not
more, than he did.

My excitement only grew as I began reading email drafts of a memo the supervisor
provided to my client just prior to her termination. When the first responsive
documents were provided by defendants, it contained a well-written memo
which was clearly designed to establish a paper trail justifying the termination.
It was the type of document that, standing alone, would leave the reader
with little doubt that my client was a horrible employee who deserved
to be fired.

There was only one problem, the memo could scarcely have been said to be
written by her supervisor. Indeed, in reviewing the email which contained
the first draft of the memo, it was apparent that he had trouble stringing
two coherent sentences together and was struggling for a convincing reason
to show that my client had done something wrong. As the email trail went
back and forth between supervisor and subordinate, the truth emerged,
the memo was actually written by my client's male co-worker and bolstered
our case that he was one of the men who received preferential treatment
on the basis of his gender.

The fact that I received these documents in litigation is attributable
to one reason only: I made a successful motion to compel early on in the
case. Albeit, the motion was on a different issue, the defendant's
counsel nonetheless realized that I would make good on my subsequent promise
to file a motion to compel to obtain all emails concerning my client and
that I would follow up with a Notice of Inspection to have an expert search
Defendant's computers for all emails pertaining to my client. It was
not long after that the old adage of "be careful what you ask for,"
came true as I received several boxes containing thousands of pages of
sometimes repetitive email trails. However, those boxes might as well
have contained buried treasure as I was able to cull together an extremely
convincing case of gender discrimination by reviewing each incriminating
email which was hidden among countless innocuous email exchanges.

In order to successfully litigate an employment discrimination case, a
Plaintiff's attorney inevitably has to file a motion to compel. It
is advisable to file a motion to compel early in the case so that you
can utilize the evidence obtained in cross-examination of witnesses during
deposition. Filing a successful motion to compel will also give you leverage
in persuading opposing counsel to voluntarily produce documents even if
he or she knows they will be harmful to their case.

It is critical to serve a Request for Production of Documents at the earliest
opportunity. Pursuant to California Code Civil Procedure Section 2011.020,
Plaintiff may serve a Request for Production of Documents ten days after
the service of the Summons and Complaint on the defendant. The requests
should be specifically tailored to your case and should always include
requests for production of the personnel files, prior complaints, investigatory
files and communications, including emails, on all topics which are in
any way relevant to your case.

Once the defendant responds to the Request, it is imperative to write a
detailed meet and confer letter as soon as possible. The parties must
meaningfully meet and confer prior to filing a motion to compel. Calendaring
the forty-five day deadline to file your motion to compel is also critical.
(Code Civ. Proc § 2031.310(c)). If opposing counsel indicates a willingness
to meet and confer by providing supplemental responses and producing more
documents, always obtain and confirm in writing a specific date for an
extension of time on that deadline, so you have time to prepare the motion
if necessary. This is true even if the defendant agrees to provide supplemental
responses, which permits the forty-five day deadline to begin anew. Otherwise,
if the defendant fails to supplement all responses in issue, a mercurial
judge may hold that you have blown the deadline even when the opposing
party has breached an agreement to supplement a particular response.

However, there are times when opposing counsel will stonewall just prior
to the deadline. All of a sudden telephone calls are not being returned
or, if they are, it's a voice mail message left well after normal
business hours. There are defense counsel who will make the calculated
gamble that you will not file that

motion to compel. When this occurs its necessary to make them pay for that
gamble by filing the motion to compel and requesting sanctions for their
failure to meaningfully participate in the meet and confer process.

Of course, when you are up against a deadline, its hard to reinvent the
wheel, let alone navigate the complex case law which is involved in some
of the privileges asserted by defense counsel. Thus, this article addresses
some of the common issues which arise in employment cases with citations
to case law which should assist all of us in finding where the bodies
are figuratively buried in our cases.

Obtain the investigation

Most defense counsel will voluntarily turn over the employer's investigation
into your client's complaint of discrimination or harassment because
a company's investigation and appropriate corrective action is a defense
to co-worker harassment and can limit your client's liability if the
harasser is a supervisor. Nonetheless, there are times when defendants
will try to hide documents which pertain the investigation and, in those
instances, you can be sure that something valuable is contained in those
documents. Moreover, it is crucial to carefully review any documents you
receive and rigorously depose all witnesses to make sure that the defense
is not merely providing you with self-serving documents while concealing
witness statements or other documentary evidence which can be helpful
to your case.

Once you have met and conferred and relevant documents are not forthcoming,
California law strongly supports compelling the production of all documents
pertaining to the corporate defendant's investigations into allegations
of discrimination and harassment. A common road block placed by defendants
is to claim that the investigation was conducted by an attorney and, thus,
protected by the attorney-client privilege. However, In
Wellpoint Health Networks, Inc. v. Superior Court, (1997) 59 Cal.App.4th 110, 129, the California Supreme Court stated "if
defendants' answer or discovery responses indicate the possibility
of a defense based on thorough investigation and appropriate corrective
response, ... a finding of waiver [of the attorney-client privilege can]
be made."

So long as your client complained of the harassment, the company is under
an obligation to investigate and take appropriate corrective action based
on the fact that California Government Code Section 12940(j)(1) states,
in relevant part: "(h)arassment of an employee, ... shall be unlawful
if the entity, or its agents or supervisors, knows or should have known
of this conduct and fails to take immediate and appropriate corrective
action." Accordingly, its hard to imagine a scenario where the employer
will not claim that it investigated and responded appropriately once a
complaint is made.

In fact, "[t]he FEHA makes it a separate unlawful employment practice
for an employer to 'fail to take all reasonable steps to prevent discrimination
and harassment from occurring.'"
State Department of Health Services v. Superior Court, (2003) 31 Cal.4th 1026, 1040. (citing Government Code § 12940(k)).
Thus, all documents pertaining to the investigation of complaints of harassment
and discrimination should be relevant to show whether the employer took
reasonable steps to prevent discrimination and harassment, which necessarily
will include a reasonable policy of investigation and taking corrective
action in response to such complaints.

Similarly, while an employer is strictly liable for hostile environment
sexual harassment by a supervisor, the employer can proffer the "avoidable
consequences" defense to decrease damages if the employee failed
to report the harassment. However, "it reduces those damages only
if, taking into account of the

employer's anti-harassment policies and procedures and its past record
of acting on harassment complaints, the employee acted unreasonably in
not sooner reporting the harassment to the employer."
State Department of Health Services, supra, 31 Cal.4th at 1049.

Using this theory, you can not only obtain all documents pertaining to
the investigation of your client's complaints, you can also compel
the production of documents pertaining to the investigations of other
complaints of harassment or discrimination. In
State Department of Health Services, supra, 31 Cal.4th at 1045-46, the California Supreme Court emphasized, "Evidence
potentially relevant to the avoidable consequences defense includes anything
tending to show that the employer took effective steps 'to encourage
victims to come forward with complaints of unwelcome sexual conduct and
to respond effectively to their complaints. . . .
'[I]f an employer has failed to investigate harassment complaints,
[or] act on findings of harassment, or, worse still, [has] retaliated
against complainants, future victims will have a strong argument that
the policy and grievance procedure did not provide a 'reasonable avenue'
for their complaints. [emphasis added]"

When the decision of
State Department of Health Services was issued, Plaintiffs' employment attorneys across the State were
relieved that the California Supreme Court departed from the federal rule
which provides employers a complete affirmative defense to liability for
supervisor harassment. Instead, under California law, at most, an employer's
affirmative defense can limit Plaintiff's damages. An unexpected additional
advantage of that decision is that Judges should permit wide-ranging discovery
of the employer's past response to harassment complaints.